1. ' This is a bail application on behalf of Abdul Rehman and Juman accused of offence under section 302 read with section 34, P.P.C. The complainant and the present applicants are close relations. The incident took place on 25-7-1984 in the afternoon. I will not go into the merits of the case and would not examine the evidence in detail because it might cause reflections on the trial now pending before the learned Judge. Suffice it to say that the impact of the arguments of the learned counsel is that these accused should be allowed bail on the principle that no motive is alleged. They were inspired with the best of spirits and have acted under grave and sudden provocation. Whether they have acted under grave and sudden provocation, is a question of fact.
2. ' I would not have allowed them bail on raising this issue unless evidence was recorded and grave and sudden provocation was actually proved but the learned counsel points out that the findings of the learned Judge in his order go to show that this position has been established from the evidence on record. He relies on the paragraph in the order of the learned Sessions Judge which runs as under:- "The accused are not entitled to bail even though from the F.I.R. And investigation it appears that the offence was committed by the accused under grave and sudden provocation, because such an offence is punishable with R.I. For 10 years which falls within the mischief of section 497, Cr.P.C."
3. ' These findings do not stand alone. The learned counsel points to the statement of Mst. Janat particularly para. 2 which runs as under:- "That on 25-7-1984 at Phiphari time I heard cries of 'murder' 'murder' from the sugarcane cultivation which above the height of man and went towards that side and found my brother Ali Nawaz was murdered along with Mst. Mithan. Both of them were in naked position lying on the ground as dead."
4. ' Even in the F.I.R. The words "Kari and Karo" have been used. The learned counsel relies on the following cases in support of his contention that in cases of grave and sudden provocation the offence would fall under the exception to section 497, Cr.P.C. Reliance is placed on 1979 P Cr. L J 72.
5. Para. 3 of this report is as follows:- "It is suggested by the learned counsel for the petitioner that the two deceased were found in a compromising position whereupon the petitioner lost his self-control and killed both the delinquents at the spot and as such the offence falls under section 304, P.P.C. And not under Fection 302, P.P.C. Even otherwise according to the report under section 173, Cr.P.C. Submitted in Court one of the motives for the crime was stated to be that the petitioner suspected illicit relations between the two deceased."
6. ' The bail was granted in the above case. Another case relied upon by the learned counsel is reported in PLJ 1975 Cr. C Lah.
362. In this also grant of bail by the Sessions Judge was approved by Mr. Justice Aslam Riaz Hussain(as he then was). Relevant paragraph of the judgment is reproduced below:- "It is stated in the F.I.R. Itself which was lodged by Muhammad Altaf that Nazir Ahmed accused (respondent) had suspected that Muhammad Altaf complainant had illicit relations with Mst.
7. Majidan Bibi. On the day of the occurrence when Nazir Ahmed respondent came to his house, he found the complainant, who used to supply milk at the house of the respondent, talking to his sister who was alone in the house. Nazir Ahmed respondent came shouting that he (Muhammad Altaf complainant) ruined their honour and he would not leave him alive. Saying this he gave two hatchet blows on the head of the complainant. Mst. Majidan Bibi rushed forward and he also gave repeated hatchet blows to her. Some other persons also turned up on hearing the noise and the respondent ran away alongwith hatchet. His sister Mst. Majidan Bibi died as a result of the injuries."
8. ' Finally in the concluding paragraph the learned Judge observed as follows:- "Therefore, respectfully following observations in Amir v. State PLD 1972 SC 277 the present case is one where the accused/ respondent is not at all likely to be awarded the maximum sentence provided for the offence committed by him, and as such it is not a case where to the respondent should be cancelled irrespective of the fact that he is above 16 years of age."
9. ' The learned A.A.-G. Opposes this application on the ground that the version in the F.I.R. Has been modified by the witnesses in their statements under section 161, Cr.P.C. Unfortunately the observations in the order of the learned Sessions Judge do not support this view. The learned Sessions Judge has relied on a case reported in PLD 1982 Kar.. 1011 and had quoted from this case in extenso. I have carefully read the case. This case appears to me to be on a different point. It is on the point of jurisdiction of the Assistant Sessions Judge and the Sessions Judge, a point which is not involved in the present case,. Namely, whether in case of grave and sudden provocation where the gravity of offence is minimized and the sentence is likely to be of a shorter term, the accused should or should not be released on bail. No assistance can be found from the judgment quoted by the learned Sessions Judge. The outcome on basis of assessment of the evidence is that so long as the observations of the learned Sessions Judge that it was a case of grave and sudden provocation, hold the field the accused are entitled to bail. The applicants are granted bail on their furnishing surety in the sum of Rs,20,000 each and P.R. In the like sum to the satisfaction of the Sessions Judge, Sukkur.